The regulations were originally issued in 2003 (pdf) by six federal agencies, including the Bureau of Land Management, the U.S. Fish and Wildlife Service (FWS), the National Park Service, the Bureau of Indian Affairs, the Forest Service and the National Marine Fisheries Service (NMFS). The regulations provided an alternative process for completing ESA consultation by eliminating the need to conduct informal consultation and to obtain written concurrence from FWS or NMFS for those National Fire Plan (NFP) actions that were not likely to adversely affect listed species or designated critical habitat.

The court held that the regulations were “arbitrary and capricious” under the Administrative Procedure Act, finding that the purported rationale for the regulations was not supported by evidence in the record. Specifically, Judge Kessler found “there is undisputed evidence in the record that the pre-existing consultation procedures had, in the very recent past, been streamlined so as to expedite the processing of NFP projects without sacrificing the safeguards contained in those procedures.”

Judge Kessler had upheld (pdf) the regulations in 2006, but revisited the ruling after environmental groups filed a motion for reconsideration. Judge Kessler had taken the matter under submission for six years, and apologized in a footnote for taking so long to issue the opinion.
 

According to Rep. Doc Hastings (R-Wash.), the committee’s chairman, the hearing will be the first of many that the Natural Resources Committee will hold to examine both the strengths and weaknesses of the ESA. Hastings has said that the law is failing to achieve its fundamental goal of species recovery, and is being used by special interest groups “to file lawsuits and drain resources away from real recovery efforts.”

The goal of the hearings is to update the ESA in a “calm, careful, and bipartisan way.” According to the News Tribune, Chairman Hastings stated that it has been over two decades since the ESA was last reauthorized, and it’s the responsibility of Congress to undertake a thoughtful analysis of the law to see what improvements could be made to ensure that it works for both species and people.  (News Tribune, Nov. 28, 2011, Rob Hotakainen.)

The Natural Resources Committee announced its intent to examine the ESA last summer. A witness list for the December 6, 2011 hearing has not yet been released.
 

Some found it unsurprising that the Supreme Court did not take the case because there is no split in the federal courts of appeal on the issue. To date, the Supreme Court has declined to review constitutional challenges to the ESA on six different occasions.

In late March, the U.S. Court of Appeals for the Ninth Circuit held that the water delivery regulations did not violate the commerce clause. The court concluded that the protection of endangered and threatened species (including wholly intrastate species such as the delta smelt) bears a substantial relation to interstate commerce. The petition for writ of certiorari was filed on June 22, 2011.
 

In the emergency motion, the environmental groups asserted (pdf), among other things, that the legislation violated the separation-of-powers clause of the United States Constitution because Congress had ordered an outcome in ongoing litigation without amending the underlying law, thereby blocking judicial review. The Service asserted (pdf) that the environmental groups were not likely to succeed on the merits given controlling case law, and that no evidence had been produced showing that the viability of the gray wolf population would be irreparably harmed by the transfer of management authority over the wolves to the states.

The Court set an expedited briefing schedule for the merits of the appeal, and expects to hear the case in November 2011. According to the environmental groups, Idaho plans to start its wolf-hunting season on August 30, 2011 and Montana is scheduled to open its season on September 30, 2011.
 

NMFS completed the reviews pursuant to section 4 of the ESA, which requires federal agencies to conduct reviews of listed species at least once every five years. Based on these reviews, NMFS determines whether a species should be delisted, or reclassified from endangered to threatened (or threatened to endangered).

In the reports, NMFS concluded that each of the species is to retain its current ESA listing classification. NMFS found that, although many salmon and steelhead populations within the ESUs and DPSs have experienced declines in abundance over the last five years, their overall status indicates that their risk of extinction has not changed since 2005. The current listings are as follows:

• Sacramento River winter-run Chinook salmon (Endangered)
• Central Valley spring-run Chinook (Threatened)
• Central Valley steelhead (Threatened)
• Central California Coast coho salmon (Endangered)
• Southern Oregon/Northern California coho salmon (Threatened)
• California Coastal Chinook salmon (Threatened)

According to NMFS, the declines in salmon and steelhead populations are most likely due to poor ocean conditions and drought. Factors that continue to pose a threat to their survival and recovery include a wide range of activities, including overfishing, predation, loss of habitat, hydropower development, hatchery practices, changes in ocean conditions and productivity, drought, and the effects of global climate change.

Environmental groups challenged the legislation on the grounds that Congress had violated the separation-of-powers clause of the United States Constitution because it ordered an outcome in ongoing litigation without amending the underlying law and blocked judicial review, effectively negating the role of the judiciary. The Service argued that the rider was properly within the scope of Congress’ authority because it did, in fact, amend the ESA by making gray wolves an exception. The rider, however, does not reference the ESA, and only references the Service’s 2009 rule.

Unsurprisingly, in his decision, U.S. District Judge Donald Molloy upheld the statute.  But he opined that the “way in which Congress acted in trying to achieve a debatable policy change by attaching a rider to the [Act] is a tearing away, an undermining, and a disrespect for the fundamental idea of the rule of law.” The judge further argued that the rider “sacrifices the spirit of the ESA to appease a vocal political faction, but the wisdom of that choice is not now before this Court.”
 

The legislation follows a May 2011 agreement reached between wildlife advocates, including the Humane Society of the United States and the Wild Fish Conservancy, the National Marine Fisheries Service (NMFS), and the states Oregon and Washington to temporarily suspend the lethal removal of the sea lions until September 2011. The agreement was due to litigation pending in response to the recent NMFS authorization to resume the lethal removal of the sea lions.

Last November, the United States Court of Appeals for the Ninth Circuit held that NMFS had violated the Marine Mammal Protection Act by failing to adequately explain its finding that sea lions were having a “significant negative impact” on the decline or recovery of salmonid species. After addressing the problems identified by the Ninth Circuit, NMFS authorized the states to resume lethally removing certain sea lions earlier this month.

The Humane Society and the Wild Fish Conservancy filed suit on May 20, 2011 challenging NMFS’s recent authorization. According to the Wall Street Journal, the Humane Society had expected to pursue a temporary restraining order, but the parties agreed to the stipulation so that the case could be heard on the merits, rather than on an emergency basis. (Wall Street Journal, May 25, 2011, by Joel Millman.) The agreement suspends any removal of sea lions through September 2011.
 

NMFS originally gave the states authorization under the Marine Mammal Protection Act (MMPA) in 2008 to permanently remove identifiable sea lions that were feeding on ESA-listed fish. Environmental organizations brought suit to challenge the action in 2009. Last November, the Ninth Circuit Court of Appeals held that NMFS had violated the MMPA by failing to adequately explain its finding that sea lions were having a “significant negative impact” on the decline or recovery of salmonid species. NMFS believes the memorandum decision (pdf) issued in support of the authorization addresses the problems identified by the court.  According to the Seattle Times, however, the Human Society of the United States, an environmental organization that was a party to the 2009 litigation, filed suit today in federal district court challenging the new authorization.  (The Seattle Times, May 20, 2011, by William McCall.)

In general, while recognizing the BDCP’s potential as a tool for helping to solve California’s chronic water problems, the panel found the draft BDCP to be incomplete and unclear in a variety of ways. As an initial matter, the panel identified the lack of an effects analysis as a crucial missing element from the draft plan. The panel further determined that a lack of clarity existed with respect to whether the BDCP is an application for the incidental take of listed species, or a comprehensive conservation strategy intended to restore ecological functions and improve water supply reliability. The panel also noted that, even if the BDCP is limited to an application for an incidental take permit, it still lacks an analysis of water conveyance alternatives and the reasons why such alternatives are not being utilized.

In addition, the panel opined that many scientists have recognized that significant environmental factors, other than water exports, have potentially large effects on fish listed under the Endangered Species Act (ESA) in the Delta. The panel also noted that there remains considerable uncertainties regarding the degree to which different aspects of flow management in the Delta, especially salinity management, affect survival of the ESA-listed fishes. Accordingly, the panel supports the concept of a quantitative evaluation of the significance of these stressors, ideally using life-cycle models, as part of the BDCP.
 

The report indicates, among other things, that an ocean harvest is permitted in 2011 for Sacramento River fall run (SRFR) Chinook salmon. Based on an estimated SRFR Chinook population of 729,900 adults, the management measures provide for an escapement of 377,000 fish. Accordingly, based on this data, the harvest rate for SRFR Chinook for the 2011 season appears to be approximately 49%, or 352,900 fish.

According to the biological opinion (pdf) issued in April 2010 regarding ocean salmon fisheries, the SRFR Chinook salmon harvest is mixed-stock, meaning that winter-run Chinook may be caught along with fall-run. Given that winter-run is listed as an endangered species under the Endangered Species Act (ESA), and that winter-run could be caught as part of the SRFR Chinook harvest, the Council’s decision to authorize a harvest rate of 49% is particularly noteworthy. However, according to the report, the Council’s 2011 regulations meet or exceed the level of protection required by all consultation standards for the salmon species listed under the ESA.

The report is the culmination of the preseason process undertaken by the Council to develop recommendations for management of ocean fisheries. The salmon management measures are adopted pursuant to the Salmon Fishery Management Plan, which describes the goals and methods for salmon management.
 

The proposed settlement would have allowed the Service to temporarily return management of the recovered wolf populations in Idaho and Montana to the states, while continuing efforts to recover the species in other parts of the Rocky Mountains. Federal protections would have remained in place in Wyoming and portions of Oregon, Washington and Utah. The settlement was an attempt to end ongoing litigation over Molloy’s August 2010 decision that held that the entire region’s wolf population must be listed under the ESA, rather than the wolf’s status varying from state to state.

In addition, according to the Seattle Times, the budget bill currently pending before Congress includes a provision that would take the gray wolf off the endangered species list in Montana, Idaho, Washington, Oregon and Utah. The bill requires the Obama administration to lift ESA protections for the gray wolf within 60 days. Under the proposed bill, ESA protections would remain in place in Wyoming.
 

The proposed settlement allows the Service to temporarily return management of the recovered wolf populations in Idaho and Montana to the states, while continuing efforts to recover the species in other parts of the Rocky Mountains. Federal protections would remain in place in Wyoming and portions of Oregon, Washington and Utah. Separate negotiations are ongoing between the Service and the State of Wyoming regarding a state management plan that could facilitate a final delisting for the species in that state.

According to Department of the Interior Deputy Secretary David Hayes, “[f]or too long, management of wolves in this country has been caught up in controversy and litigation instead of rooted in science where it belongs. This proposed settlement provides a path forward to recognize the successful recovery of the gray wolf in the northern Rocky Mountains and to return its management to states and tribes."

The settlement must be approved by U.S. District Judge Donald Molloy, whose August 2010 decision addressed whether de-listing the gray wolf in the states of Montana and Idaho, while leaving federal protections in place for wolves in Wyoming, violated the ESA. The court held that the entire region’s wolf population must be listed under the ESA, rather than the wolf’s status varying from state to state. The ESA protections for the gray wolf were subsequently reinstated in all three states. To address this issue, the settlement provides that the Service would agree to address the delisting of wolves in the region as a distinct population segment, rather than on a state-by-state basis.

The proposed settlement would also be terminated if Congress passes its own wolf delisting language, as has been proposed in both House and Senate spending bills.